WATKINS: Nationalizing marriage

By William J. Watkins Jr. -
The Washington Times -
Tuesday, August 17, 2010

A federal district judge in California has ruled that it’s unconstitutional to define marriage as a covenant between a man and a woman.

The impact of the decision, should it stand, is that it nationalizes marriage - one of many matters the 10th Amendment leaves to the people and the states. That amendment states that powers not delegated to the federal government by the Constitution, nor prohibited by it, “are reserved to the States respectively, or to the people.” The sanctioning of marriage is one of those powers.

The ruling by Judge Vaughn R. Walker would change that. Although a union between a man and woman has been the common-law definition of marriage from Colonial times to the present, Judge Walker concluded in Perry v. Schwarzenegger that the traditional legal definition is “irrational.” He further found it “irrelevant” that “the majority of Californian voters supported” the age-old definition in a 2008 statewide referendum, Proposition 8. Thus, his decision would deny the people the right to decide a matter that throughout U.S. history has been considered beyond federal authority.

Judge Walker’s sole rationale for rejecting human experience and legal precedence was his claim that gender roles are anachronistic. But does it really make no difference that only a man and a woman can biologically produce a child, while two men or two women cannot? Because marriage law is entirely about gender, wouldn’t a claim that gender is “irrelevant” be what is “irrational”? And if gender is not a criterion for marriage, what is? Can a father and daughter marry? What about siblings or a man and his dog? And is all of this to be determined by judicial fiat? If so, there is no rule of law and the civil liberties of all Americans are up for grabs.

So when did we travel through a postmodern looking glass and enter the world of Judge Walker, where gender has no application to marital matters - and the test of a law’s constitutionality is not whether it complies with the Constitution, but with a judge’s views ?

We started down this slippery slope in 2003, in a 6-3 Supreme Court decision by Justice Anthony M. Kennedy. In a case known as Lawrence v. Texas, the court overruled prior precedent and held that Judeo-Christian “ethical and moral principles” may not form the basis of legislation. Accordingly, the court struck down a rarely enforced Texas “anti-sodomy” law.

Justice Kennedy’s opinion, however, was far removed from Judge Walker‘s. Justice Kennedy made clear that the Lawrence decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Judge Walker’s decision takes that giant leap.

Of course, not all state laws claiming to promote morality are good laws. The statute overturned in Lawrence was foolish and unjust, criminalizing private conduct between consenting adults. Most Texans realized this, and even Justice Kennedy admitted that there was a pattern of nonenforcement of the law. Justice Kennedy also acknowledged that through the democratic process, many states had been repealing such laws. Unfortunately, he was not content to let elected bodies continue to cull the statute books.

Until recently, no credible jurist would suggest that a judge’s personal disagreement with a law means the law is unconstitutional. As former Supreme Court Justice Potter Stewart observed, the judicial function does not extend to determining whether a “law is unwise, or even asinine.” Justice Stewart understood that “it is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.” A judge simply reviews a statute to determine if it clearly violates a written provision of the U.S. Constitution.

The Perry decision, like Lawrence before it, stands for the proposition that unelected judges should legislate from the bench.

In the best of all worlds, marriage would be privatized so that consenting adults would be free to enter into binding, legal agreements without permission from the state. Instead of allowing private parties to make such choices based on their own traditions in a free society, Judge Walker has intolerantly chosen to redefine and nationalize marriage agreements, imposing a single standard: his own.

William J. Watkins Jr. is a research fellow with the Independent Institute and author of “Reclaiming the American Revolution” (Palgrave Macmillan, 2004).